Lewis: “I have no sentence. I’ve been here without a sentence for five years. . . . .I’m the only one that’s been here for the last 40 years. This is not the original prosecutor, this is not the original [defense] attorney, this is not the original judge. I’m the only one who knows what happened and what should be here.”

Judge Lillard grants motion to give Lewis free copy of “re-created” file, hear briefs on whether case should be in front of Judge Edward Ewell, who vacated Lewis’ sentence 5 years ago and had last full copy of record

By Diane Bukowski

October 8, 2017

Charles Lewis awaits hearing Oct. 6, 2017.

DETROIT – Charles “K.K.” Lewis, now 58, may go free on bond after 41 years in prison since the age of 17, for the killing of an off-duty Detroit police officer which available evidence shows he did not commit.

Third Judicial Circuit Court Judge Qiana Denise Lillard set a bond hearing for Fri. Oct. 13 at 9 a.m. in Rm. 502, the Frank Murphy Hall, at Gratiot and St. Antoine. His family and supporters are asking all to attend.

“It’s the most bizarre and inappropriate, inhumane treatment for a citizen of this country to be held for five years with no sentence,” Lewis’ attorney Victoria Burton-Harris said at the post-conviction hearing on the complete loss of his official court file.

Lewis himself says the loss of his file, and nearly two years of haphazard and unsuccessful attempts to fully re-create it, mean that his conviction and sentence should be peremptorily dismissed and he should be freed for good.

He cites the criminal case, People v. Fullwood, 1974 Mich. LEXIS 672 *; 392 Mich. 751. That Michigan Supreme Court ruling says, “On order of the Court, sua sponte pursuant to GCR 1963, 865.1(7), defendant/appellant’s conviction and sentence is peremptorily reversed due to the impossibility of reconstructing the lost record in this cause. The matter is remanded to the Recorder’s Court for the City of Detroit for retrial.”

Lewis’ mother Rosie Lewis said, “It would mean that I could live again, I haven’t been able to live. I truly believe the file was lost deliberately. There were things in the file that could have exonerated him. There were 29 witnesses for the police and not one of them saw my son or pointed the finger in that direction that he was the killer. You can’t just cover something up and push it away. He’s done 42 years—they have nothing else, not a record, give the man his freedom, which is what he should have had when he was 17.”

Above: Lewis’ mother and supporters address media after hearing

Numerous supporters, some of whom who had served time with Lewis, attended the hearing, standing with Mrs. Lewis as she spoke. Among other issues, they cited the fact that the U.S. Supreme Court has twice outlawed juvenile life without parole, the sentence Lewis was serving.

During the hearing, Attorney Burton-Harris cited Judge Edward Ewell’s vacation of Lewis’ life-without-parole sentence Oct. 17, 2012, five years ago, subsequent to the U.S. Supreme Court’s ruling in Miller v. Alabama (2012) earlier that year. The high court held then that mandatory juvenile life without parole {JLWOP) sentences are unconstitutional, “cruel and unusual punishment” under the Eighth Amendment to the U.S. constitution.

Burton-Harris also argued that the case should be in front of Ewell, who is still on the bench and had Lewis’ court file at the time, not in front of Lillard, who has said repeatedly she is not familiar with the case. She said state case law in People v. Bart mandates the case go back to the trial judge, especially if the successor judge is not familiar with the case. Lillard granted her motion for the parties to brief that issue for the next hearing date March 6, 2017.

In the Miller ruling, and in Montgomery v. Louisiana (2016), which declared Miller retroactive, the court said “only the rarest child” should be sent to die in prison.

But Wayne County Prosecutor Kym Worthy has asked that Lewis’ JLWOP sentence be re-instated, along with those of 66 other Wayne County juvenile lifers, the highest number in the state. Ninety-eight percent of Wayne County’s juvenile lifers are Black.

Altogether, 267 state juvenile lifers have received the same recommendation, two-thirds of the total 363. A few of those who had prosecutor recommendations to be re-sentenced instead to terms of years have been trickling home after seeing the parole board. During a recent hearing before the U.S. Sixth Circuit Court of Appeals, Attorney Deborah LaBelle set that number at 36 out of 38 who have seen the parole board.

During the hearing Oct. 6, Atty. Burton-Harris argued that Judge Lillard should vacate her Nov. 11 order to recreate the Lewis file by having the prosecution and defense share documents in their possession. She said this violated Lewis’ attorney-client privilege and his rights under the Fifth Amendment. She asked that the prosecution destroy all documents given to it by the defense so far.

Judge Qiana Denise Lillard

She also asked the Lewis be given a free copy of the file the parties have “re-created” so far, free of charge.

“He has not received a copy of his file since it’s been lost, stolen, run off with, marked up, signed up,” Attorney Burton-Harris argued. “He has nothing. The docket is bare.”

Lewis himself added that he was the only person present with full knowledge of what should be in the file.

“I’m the only one that’s been here for the last 40 years,” he said. “This is not the original prosecutor, this is not the original [defense] attorney, this is not the original judge. The only one who can speak to what really happened and what really should be here is me.”

Lewis has also argued in various motions to dismiss and objections, which Judge Lillard accepted on the record as timely, that both U.S. and Michigan State Supreme Court case law mandates that case files lost in whole or in part cannot be re-constructed and that his case should be forthwith dismissed. In a bizarre twist, Assistant Prosecutor Tom Dawson contended that those were Lewis’ motions to “re-create” the file.

Judge Lillard granted Atty. Burton-Harris’ request to give Lewis a free copy of the “re-created” file, saying Lewis had an absolute right to it. She gave the Clerk’s office until Oct. 16 to provide the copy, despite AP Dawson’s objection that the file could be anywhere from 2,000 to 10,000 pages.

Dawson said he had reviewed every page of the “re-created” file and that it did not contain anything covered by attorney-client privilege, only public documents. But Burton-Harris said she would not be fulfilling her duty to her client by taking the prosecution’s word for what is in the “re-created” file.

It is unclear exactly what is in the file. Judge Lillard has a carton of paper files in her office. But during a hearing Feb. 15, 2017, AP Jason Williams testified that Lewis’ previous defense attorney Valerie Newman also gave him a “flash drive” with files in her possession. No one has yet testified regarding the contents of that flash drive, and whether it is the same one Newman has given to Lewis’ two subsequent defense attorneys.

“If the court will not vacate its Nov. 11 order, we are asking for an adjournment so that we can file a delayed application for leave to appeal in the Court of Appeals, Atty. Burton-Harris said.

She argued that the only proper way to restore the file would be under MCR 3.607, a procedure she said could take another one and a half years on top of the nearly two years Lewis has undergone in his current series of hearings on the lost file.

She also noted the existence of another Michigan Supreme Court case, People v. Horton,which mandates that the defendant, his attorney and the prosecution select the files to be included, giving UNANIMOUS consent to EACH document.

Burton-Harris also asked that Judge Lillard contact Wayne County Jail authorities immediately because her client is not receiving his proper dose of insulin for his severe case of diabetes there. He said he receives 70 units a day at Lakeland Correctional Facility, but is receiving only 20 units at the jail.

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